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政府緝部

連輸及房屋局

血..科香港添 M~ YiJ':吾美過 2 號

政府總邱東興

Transport and Housing Bureau

Government Secretariat Traß lIpurt Branch

Ellst Wil\g. Cenlral Govemment Otlic瓜，2 Tim Mei Avet可ue.τàmar， Hong Kong

朮局4當晚 OurRer.PML 8/1 ()(SO/2

來函檔號YourRcf. LS/B/22/(c)/1S-16

T例肉:

Ms Evelyn Lee Legal Service Division Legislative Council Secretariat Legislative Council Complex 1 Legislative Council Road Central, Hong Kong

DearMsLee,

30 May 2016

Merchant Shipping (Safety) (Signals of Distress and Prevention of Collisions) (Amendment) Regulation 2016 (L.N. 53)

Merchaot Shipping (Safety) (Carriage of Cargoes) (Amendment) Regulation 2016 (L.N. 54)

Merchant Shipping (Safety)σ卸ISBC Code) Regulation (L.N. 55)

Merchant Shipping (Safety) 個igh Speed Craft) (Amendment) regulation 2016 (L.N. 56)

Th訂ùc you for your Ietter dated 20 May 2016 on the captioned subjects_ Our replies to the matters raised in your le吐er are set out below.

L.N.53

Rule 31 in the amended Schedule to the Merchant Shipping (Safe可) (Signals of Dis甘ess and Prevention of Collisions) Regulations (Cap. 369N) concems both a seaplane and a Wing-In-Ground (“WIG") craft_ Technically speaking WIG craft 1S not a kind of seaplane because it

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LC Paper No. CB(4)1035/15-16(05)

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only flies in close proximi句 to 也e sea surface by utilizing surface-effect action. However, as 也is exercise tó amend Schedule to Cap. 369N seeks to reflect the latest changes of the Intemational Regulations for Preventing Collisions at Sea (Intero叫onal. Regulations) and that on1y “Seaplanes" is adopted as the heading of Rule 31 thereunder~ the heading of our Rule 31 in the Schedule should conform wi血也e text and remain as it is now.

Section 4(17) arnends paragraph l(c) of Annex III in the Schedule to Cap.369N. The two p缸agraphs after paragraph 1 ( c) in question are explanatory notes to the table therein regarding the :range of whistles' audibility. The explanatory notes seek to provide further information regarding factors 也at might affect the range of audibili妙. Given 由at 也etwo paragraphs 訂e included in the Intemational Regulations，出ey should be retained in bo也 texts. We wiI1 amend the Chinese text accordingly as soon as practicable.

L.N. 54

Regarding the veri自cation of container gross mass (VGM) requirements, while the SOLAS Convention requires container gross mass to be verified by one of the two accepted methods, and 由at containers cannot be loaded onboard without VGM data, detailed implementation of such requirement is left to the discretion of administrations and port states. The proposed section 3A sets Ollt 出e VGM requirernents for implementing regulation 2 of the Convention. The notice to be published in Gazette by the Director of Marine does not add mandatory requirements but seeks to provide guidance to the industry as to the procedures and documentation for complying with the VGM req凶rement.

We have considered the following main principles on whether 也enotice has “legislative effect"一

(吩咐咄er 泣 extend.s or amends existing legíslation (Wil1iams v. Government ofIsland ofSt. Lucia [1970] AC 935);

(b) whether it has general application to the public or a class as opposed to individuals (Fowler v. AG [1987] NZLR 56; Jackson S關dsfield & Sons v. Bu吐erw。他 [1984] 2 All ER 558);

(c) whether it formulates a general rule of conduct without reference to particular cases (The Commonwealth v. Grunseit (1943) 67 CLR 58); and

(d) the legislative intent.

Applyíng the above principles, the notice under section 3A of L.N. 54, .being admínístrative guidelines for the verification of container

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gross mass requirement, does not extend or amend existing legislation. It does not apply generally to the public or formulate a general rule of conduct but only provides guidance to individual shippers with containers to be loaded in Hong Kong for export. The express provision under section 3A(8) declaring that the notice is not subsidiary legislation is also a clear indicator of the legislative intent as to the nature of the notice. Given these facto路， a notice published by the Director of Marìne in Gazetle pursuant to the new section 3A(7) of L.N. 54 has no legislative effect.

L.N.55

Section 7(1) of L.N. S5 implements section 4.2.1 of the International Maritime Solid Bulk Cargoes Code to require shippers to provide certain c訂go information as stipulate.d under section 7(2) “sufficiently in advance of loading". “Sufficiently in advance of loading" means 由at the informatÌon must be submitled before the loading of the C缸go and that there must be enough time for preparatory works (eg. carrying out safety precautionazy actions, making loading pl詛咒 etc.) to be done between the submission of the infonnation and the beginning of C訂go loading. What constítutes “sufficiently 泊 advance of loading" might v訂y in q.ifferent cases but this is determined by objective factors which 位e commonly accepted by and well known to the industry. For instance, availability of cargo loading instruments on the ship, quantities of 也e c缸goes involv吋 and danger of certain specific types of cargoes, etc. 缸e some of the factors to be considered.

Should you have any enquiries, please feel 企ee to contact me at 35098162. Thank you.

Yours sincerely,

Principal Assistant Secretary for Transport and Housing (Transport)

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c.c. Department of J Qstice Attn:

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Ms Phyllis POON~ Senior Govemment Counsel Ms Carmen CHAN, Senìor Govermnent Counsel (Acting) Mr Jonathan LUK, Government Counsel L仕 Gary LI, Government Counsel Mr King WONG, Govemment Counsel Miss Queenie \\巾， Government Counsel (Fax: 3918 4613)

Marine Department A位n:

Mr. LEUNG Man Chiu, Chief, Technical Policy (Acting) (Fax: 25424841)

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